Constitution Check: Is lying ever protected by the First Amendment?

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In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights its protects. Today’s topic: the limits of free speech.

The constitutional claim:

“It has long been clear that First Amendment protection does not hinge on the truth of the matter expressed…It is speculative at best to conclude that criminally punishing lies about having received congressionally-awarded medals is the best and only way to ensure the integrity of such medals….The greatest damage done seems to be to the reputation of the liars themselves.”

- Ninth U.S. Circuit Court of Appeals, majority opinion in U.S. v. Alvarez, striking down the Stolen Valor Act, August 17, 2010, (reconsideration denied March 21, 2011, appeal to Supreme Court due by August 18)

The constitutional response:

It is easy to find, in past Supreme Court opinions, comments suggesting that the Constitution does not protect false statements. One strong declaration like that came in a 1974 decision in a libel case, Gertz v. Welch.

Medals of Honor (Flickr image by kansas_city_royalty

There, the Court said that “false statements of fact belong to the category of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The Court, however, has not always said that. In another libel case, for example, the 1964 decision in New York Times v. Sullivan, the Court remarked that “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the breathing space that they need to survive.”

In short, the Court actually has never said, in so many words, that falsity is never protected as a form of free speech under the First Amendment. The classic examples of unprotected speech are obscenity and “fighting words.”

Lately, in fact, the Court has been hostile to requests that it recognize new categories of controversial speech as beyond the First Amendment’s umbrella. In 2010, in U.S. v. Stevens, it rejected a federal government plea to deny constitutional protection to videos depicting animal cruelty, and, this past term, in Brown v. Entertainment Merchants, it rejected a plea by the state of California to deny such protection to violent video games when minors seek to buy or rent them.

Teacher’s corner

Using the language of slander and libel, the courts have determined the guidelines for lying. Use these guidelines and a plethora of resources and lessons located here and here, your students can begin investigating what the U.S. Constitution says about lying.

Shortly, it will get another such request – this one, again, from the federal government. The Justice Department has announced it will appeal a decision by the Ninth Circuit Court of Appeals in San Francisco, striking down the 2006 Stolen Valor Act. That 2006 law imposes a fine or up to six months in jail for any individual convicted of falsely stating that he or she has received any military medal authorized by Congress or by the military services. If the false claim involves the Congressional Medal of Honor, or other major medals, the prison term can be lengthened to a year.

The first individual convicted under the law was Xavier Alvarez or Pomona, Calif. He was elected to a local water district board, and at a public meeting, he claimed he was a retired Marine, had been wounded many times, and had won the Medal of Honor. Those claims, the Ninth Circuit Court said, were “a series of bizarre lies.” (He pleaded guilty, on condition he could challenge the constitutionality of the Act on appeal; he was fined $5,000, put on probation, and ordered to do community service.)

In prosecuting Alvarez, the federal government took the most aggressive position: What Alvarez claimed was criminal, simply as a form of words, without any other factors involved, and the First Amendment never protects such words. Thus, it would put lies totally beyond the Constitution’s shield.

The Ninth Circuit refused to create a new category – lies, merely told as ties – of unprotected speech. While the majority conceded that “many lies may be made the subject of a criminal law,” it said that any past decision allowing punishment for lying involved “not just knowing falsity, but additional elements that serve to narrow what speech may be punished” — such as lying to get a government benefit. The dissenting judge argued that the ruling runs counter to six decades of Supreme Court precedents.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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